Opinion
April, 1898.
Einstein Townsend, for motion.
P.V.R. Van Wyck, opposed.
The action is for libel. It, therefore, had to be commenced within two years. Code of Civil Procedure, § 384. Upon the publication of the libel set forth in the complaint the statute would have fully run on December 23, 1897, if an attempt had not been made to commence the action, as provided by section 399 and subdivision 6 of section 438 of the Code of Civil Procedure, by a delivery of the summons to the sheriff on December 22, 1897. That gave the plaintiff sixty days additional time. The sixty days expired February 21, 1898, which, consequently, was the last day upon which to begin publication of the summons so as to keep within the Statute of Limitations. The plaintiff on that day procured an order of publication, and the first publication took place on the evening of the same day in the "Evening Post." In the "New York Law Journal" the first publication was made two days later. Without stopping to consider whether that was sufficient, the objection still remains that the summons and complaint and order of publication and affidavits in support of the order were not filed until February 28, 1898. This objection is fatal, for, under section 442, those papers should have been filed with the clerk on or before the day of first publication. That provision is mandatory and had to be complied with to confer jurisdiction. The failure to do so is not a mere irregularity within the meaning of rule 37 of the General Rules of Practice. Section 437 of the Code does not help the plaintiff, because it refers to substituted service.
For the foregoing considerations the motion of the defendant to set aside the order of February 21, 1898, directing service by publication, because the obtaining of the order was not followed up by the filing of the necessary papers on the same day, should not be granted in its entirety. The order was regularly obtained. But all proceedings taken by the plaintiff under it are of no effect because the papers were not filed in time. The defendant may, therefore, have an order setting aside plaintiff's proceedings, under the order of February 21, 1898.
Ordered accordingly.